Judge rules against Christian baker Jack Phillips in transgender 'birthday' cake case

"A judge has ruled that Colorado Christian baker Jack Phillips violated state anti-discrimination law by refusing to bake a pink-and-blue transgender birthday cake." - C. Post

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Bert Perry's picture

Supreme Court ruled 7-2 that previous actions against Phillips violated his 1st Amendment rights, this judge apparently thinks that the precedent does not apply.  Maybe this is just my judgmental side, but part of me hopes this judge gets (legally speaking) slapped into next week and de-benched.  What he's doing, really, is to further enable the "lawfare" of the woke left against Phillips even though the highest court in the land has said "knock it off."

Aspiring to be a stick in the mud.

Mark_Smith's picture

This time its a simple cake, not an elaborate one requiring his artistic talents. They went to him on purpose, had him make a cake, then told him it was for transgender. He was set up. But you can't refuse to sell simple cakes.

Bert Perry's picture

Mark, here's David Limbaugh's commentary on the matter.   More or less, the judge completely refused to look at the string of emails between the plaintiff and defendant that made the message in the cake (blue on the outside, pink inside--appears male but "is really" female inside) clear.

It's not "just a cake".  It's a clear example of using the courts to harass Philipps, one that was initiated after Philipps had beaten the state regulatory board already for the same refusal to "bake the message into the cake."  Again, "Judge" Bruce Jones should be removed from the bench and disbarred for this little stunt.

Aspiring to be a stick in the mud.

dgszweda's picture

I think the baker may loose this one.  It is going to come down to whether the cake in and of itself was a violation of his religious freedom.  Could someone who is not a transgender come in and order a Blue cake with pink creme frosting on the inside?  I would argue that the baker would probably not have a problem with that,  Therefore can they refuse service only once the individual revealed who they are?  This is very different from a wedding cake.

Mark_Smith's picture

dgszweda wrote:

I think the baker may loose this one.  It is going to come down to whether the cake in and of itself was a violation of his religious freedom.  Could someone who is not a transgender come in and order a Blue cake with pink creme frosting on the inside?  I would argue that the baker would probably not have a problem with that,  Therefore can they refuse service only once the individual revealed who they are?  This is very different from a wedding cake.

yep

Mark_Smith's picture

You go to the store to buy a premade cake. You say this cake is to celebrate your church's anniversary. The owner says they don't like Christianity and won't sell. Is that legal?

Andrew K's picture

Mark_Smith wrote:

You go to the store to buy a premade cake. You say this cake is to celebrate your church's anniversary. The owner says they don't like Christianity and won't sell. Is that legal?

You go to a Muslim baker and ask him to design a cake with a young man's face on the top. 

While he's taking notes, you tell him the man is Muhammad. 

He tells you to leave.

Larry's picture

Moderator

The owner says they don't like Christianity and won't sell. Is that legal?

Of course it is, but that's a bit different because it is premade. This was a situation in which Person A asked Person B to say something for Person A. Person A should not be compelled to say something he doesn't want to say. That is a bedrock principle of freedom. 

I would argue that the baker would probably not have a problem with that,  Therefore can they refuse service only once the individual revealed who they are? 

It wasn't about who they are but what they wanted the baker to say with his cake. According to the article, "the cake was rejected after Scardina disclosed the meaning behind the cake's custom design." So it wasn't about who they were. He was willing to serve them. However, once the customer told Philips what he wanted Philips to say, Philips was unwilling to say that. And he, like every other business person, has the right to do that. This should be an easy decision by the courts, particularly given the past case and given the recent adoption case which was 9-0 on these very ideas--that other people cannot coerce the religious beliefs and the expressions of other people. 

This should be uncontroversial. You can't force someone to say something they don't want to say.

Mark_Smith's picture

Andrew K wrote:

 

Mark_Smith wrote:

 

You go to the store to buy a premade cake. You say this cake is to celebrate your church's anniversary. The owner says they don't like Christianity and won't sell. Is that legal?

 

 

You go to a Muslim baker and ask him to design a cake with a young man's face on the top. 

While he's taking notes, you tell him the man is Muhammad. 

He tells you to leave.

Ahh... see ,you asked that baker to be an artist. In the case at hand we have a plain pink cake with blue frosting. No art.

Mark_Smith's picture

A cake with some frosting on it is not artistic talent being used for a purpose you don't support. Its simple commerce.

Andrew K's picture

Mark_Smith wrote:

 

Andrew K wrote:

 

 

Mark_Smith wrote:

 

You go to the store to buy a premade cake. You say this cake is to celebrate your church's anniversary. The owner says they don't like Christianity and won't sell. Is that legal?

 

 

You go to a Muslim baker and ask him to design a cake with a young man's face on the top. 

While he's taking notes, you tell him the man is Muhammad. 

He tells you to leave.

 

 

Ahh... see ,you asked that baker to be an artist. In the case at hand we have a plain pink cake with blue frosting. No art.

Definitions of art are sticky and, in this case, irrelevant. The commonality is that in both situations, a message is being communicated through the product which the creator found offensive. There was no problem with the production until the creator was informed what his work was to represent.

Let me just add, even if you disagree with Jack, needling his convictions constantly for a perfect consistency in his practice and theory of cake-baking is at once something none of us could probably stand up to as well as, frankly, sick.

I have no doubt of he had agreed to make this cake, they would have tried something else.

dgszweda's picture

Again,

I don't think this will pass the muster test.  He was not leveraging his artistic skills to create a message.  The individuals requested a standard cake with standard features.  None of which, in and of themselves, convey a message.  They indicated that they were willing to make the cake.  Only after they revealed why they chose the colors did they refuse.  I don't see how they can offer a standard cake, choose to bake the cake for that individual, but then back out when they find out what the cake will be used for at some later date off their premise.

Another area that they will get hung up legally is whether they request from each and every individual how cakes will be used at some later date and apply a consistent standard to the response.  If not, than it points to further discrimination.

dgszweda's picture

Andrew K wrote:

 

Mark_Smith wrote:

 

You go to the store to buy a premade cake. You say this cake is to celebrate your church's anniversary. The owner says they don't like Christianity and won't sell. Is that legal?

 

 

You go to a Muslim baker and ask him to design a cake with a young man's face on the top. 

While he's taking notes, you tell him the man is Muhammad. 

He tells you to leave.

Not even close.  Muhammad is offensive to the cake maker and placing the image in and of itself on the cake is offensive.  The baker was not offended in making the cake.  Was not offended in the colors chosen, or even who was requesting the cake.  The only offense is after the cake was purchased, how the individual was going to use the cake.

Andrew K's picture

dgszweda wrote:

 

Andrew K wrote:

 

 

Mark_Smith wrote:

 

You go to the store to buy a premade cake. You say this cake is to celebrate your church's anniversary. The owner says they don't like Christianity and won't sell. Is that legal?

 

 

You go to a Muslim baker and ask him to design a cake with a young man's face on the top. 

While he's taking notes, you tell him the man is Muhammad. 

He tells you to leave.

 

 

Not even close.  Muhammad is offensive to the cake maker and placing the image in and of itself on the cake is offensive.  The baker was not offended in making the cake.  Was not offended in the colors chosen, or even who was requesting the cake.  The only offense is after the cake was purchased, how the individual was going to use the cake.

Nobody knows what Mohammed looked like.

My point was, the baker doesn't realize it's Mohammed until he's told. It's just a generic young man to him at first. It's the meaning of the image, not the image itself, which offends him.

Upon being told, he would interpret it as intentionally mocking his faith and provoking him. And he'd be right.

Mark_Smith's picture

You're a butcher. And a deacon at a Baptist church that teaches against drinking alcohol. A guy comes in and asks for a side of beef because he is going to have a blowout party with tons of beer and liquor. Can you not sell the beef to him because you don't like how he'll use it? This is pure lunacy.

Andrew K's picture

Mark_Smith wrote:

You're a butcher. And a deacon at a Baptist church that teaches against drinking alcohol. A guy comes in and asks for a side of beef because he is going to have a blowout party with tons of beer and liquor. Can you not sell the beef to him because you don't like how he'll use it? This is pure lunacy.

Beef doesn't communicate a message, does it? Where's the message asked to be conveyed here? This is a speech issue.

Try to comprehend my pure lunacy, and I'll try to get my mind around your utter blindness.

 

Larry's picture

Moderator

Ahh... see ,you asked that baker to be an artist. In the case at hand we have a plain pink cake with blue frosting. No art.

How did you decide it wasn't art? And more importantly, how did you decide it wasn't speech (which is the real issue; the first amendment isn't about art but speech and association)? And what gives you the authority to determine what Jack Philips must believe or say or do?

The customer clearly intended it to be speech; he said so. That was the basis of the whole charade. He wanted to bait Philips into a situation of saying something. The point of it being speech has already been conceded. The cake had a meaning that the customer wanted the baker to communicate. And the baker did not want to say that based on his religious convictions and that is exactly what the 1A is for. 

This is pure lunacy.

This about sums it up, I think.

Mark_Smith's picture

Andrew K wrote:

 

Mark_Smith wrote:

 

You're a butcher. And a deacon at a Baptist church that teaches against drinking alcohol. A guy comes in and asks for a side of beef because he is going to have a blowout party with tons of beer and liquor. Can you not sell the beef to him because you don't like how he'll use it? This is pure lunacy.

 

 

Beef doesn't communicate a message, does it? Where's the message asked to be conveyed here? This is a speech issue.

Try to comprehend my pure lunacy, and I'll try to get my mind around your utter blindness.

 

Andrew,

if the baker can tell the man no about the cake with no artistic worth, the butcher can tell the drunkard no. Is that America?

Mark_Smith's picture

Larry wrote:

How did you decide it wasn't art?

Uhh... its a basic cake with some frosting on the outside. That's not art in anyone's imagination. 

Larry's picture

Moderator

Uhh... its a basic cake with some frosting on the outside. That's not art in anyone's imagination. 

Why are you hung up on it being art? And why are you determined to force speech from someone? Why not give them freedom to do what they want?

Mark_Smith's picture

If you are a businessman you are open to all. The limit reasonably comes to you being part of the message. So, if your artistic talent (a la a specially made fancy cake) becomes part of the message, you can refuse. Otherwise you smile and do the job. 

Let's say you are an electrician and the local Democratic Party HQ has a problem that needs to be fixed. Can you refuse? Can a mechanic refuse an oil change for a JW church van?

 

Mark_Smith's picture

Larry wrote:

Uhh... its a basic cake with some frosting on the outside. That's not art in anyone's imagination. 

Why are you hung up on it being art? And why are you determined to force speech from someone? Why not give them freedom to do what they want?

Why are you determined to read every action as speech so you can refuse it?

Mark_Smith's picture

the original argument by the baker and photographer was that it was their artisitc talent. The law is settled about basic commerce. If you are open you are open to all.

Larry's picture

Moderator

Why are you determined to read every action as speech so you can refuse it?

That's actually the basis of the request. The customer admitted it. Did you even read the article? Are you familiar with the facts of the case and the preceding ones?

Let's say you are an electrician and the local Democratic Party HQ has a problem that needs to be fixed. Can you refuse? Can a mechanic refuse an oil change for a JW church van?

Of course. But neither of those are speech. 

I am not quite following your line of thinking here. You seem to believe that people should be compelled to say things or do things that violate their religious conscience. Why is that acceptable to you? What's wrong with referring someone to another provider who can help them?

 

 

dcbii's picture

EditorModerator

Mark_Smith wrote:

Uhh... its a basic cake with some frosting on the outside. That's not art in anyone's imagination. 

In that case, neither are blank walls, crosses laying in urine, plain stripes, or splotches of paint thrown on a canvas, all of which are considered art by some, and worthy of protection for free expression as such.  A simple, but well-made cake is just as much art as those if the baker considers it so, and should be given the same protection.

(Note: the items on my list are not art in my imagination, but that doesn't apply to everyone.)

Dave Barnhart

Mark_Smith's picture

Larry wrote:

Why are you determined to read every action as speech so you can refuse it?

That's actually the basis of the request. The customer admitted it. Did you even read the article? Are you familiar with the facts of the case and the preceding ones?

Let's say you are an electrician and the local Democratic Party HQ has a problem that needs to be fixed. Can you refuse? Can a mechanic refuse an oil change for a JW church van?

Of course. But neither of those are speech. 

I am not quite following your line of thinking here. You seem to believe that people should be compelled to say things or do things that violate their religious conscience. Why is that acceptable to you? What's wrong with referring someone to another provider who can help them?

 

 

Larry,

We must be miscommunicating. Yes, I read the articles. Have you? 

And by the way, you CANNOT refuse to serve someone "because they are a Democrat" or "because they are a JW."

A guy comes in and says he wants a pink cake with blue frosting. So what???? He then tells you its to celebrate his coming out party or transgender or whatever. So what? You make cakes. When the customer leaves who cares what they do with it.

The previous lawsuit was about artistic involvement in a cause. If my skills as an artist are used to endorse an idea I don't agree with. So, a fancy birthday cake or wedding cake. Or some other elaborate artistic work. That is not what is going on here. It was a basic cake with frosting lathered on.

Remember, artistic creative talent had to be involved per the SCOTUS decision. You merely using your talent was not enough. The photographers lost their lawsuit because all they were doing was recording what happened. They were not deemed to be endorsing anything by providing their service. 

Jim's picture

Some of the worst acts of intolerance are being done in the name of tolerance

the dynamic he describes so well applies to all the fronts in the culture war. It also points to a fundamental difference between the religious and secular fundamentalists these days. Take the most fire-breathing preacher in backwoods Mississippi. He may rail at what he takes to be the sinful ways of sexually liberated San Francisco. But he’ll largely settle for keeping pornography and Drag Queen Story Hour out of the local library.

By contrast, the progressive in San Francisco is not content with the sexual license his hometown affords. He doesn’t seem to be able to sleep at night unless he knows the local library in some rural Mississippi town has its own Drag Queen Story Hour.

In the same way, it is apparently not enough for a Colorado woman to get a blue-and-pink cake celebrating her gender transition from any of dozens of bakers in her area who are more than happy to bake her one. She wants to force Jack Phillips to make it—precisely because she knows it goes against his beliefs. Yet another testament to why the most egregious exercises of intolerance today are those done in the name of tolerance.

My comment: I would bake a cake for any paying customer